Existen una serie documentos que obligatoriamente deben ser portados por el conductor de un vehículo de transporte de carga durante toda la operación de transporte. La ley exige llevarlos desde el momento en que se realiza el cargue hasta llegar a destino. Uno de estos documentos es el Manifiesto de Carga, documento que ampara el transporte de mercancías ante las autoridades.
In Colombia, the freedom of business is guaranteed, each natural and legal person can dedicate themselves to the business of their choice. The Political Constitution says in its Art 333: "Economic activity and private initiative are free, within the limits of the common good". This means that freedom has its limits, all commercial activity must be carried out under the mandates of the law and must not violate the rights of other citizens. The same constitutional article says: «The company, as the basis of development, has a social function that implies obligations«. It is the duty of the Government to ensure that the cargo transport business is developed legally, under the parameters just mentioned. One of the methods available to the Government to guarantee the legality of the transport service is the requirement and control in the issuance of the cargo manifest. In addition, it is a tool to keep statistics of public road freight transport within the national territory, to design sector policies.
The information of the electronic cargo manifest is capable of being shared with other State entities such as the Superintendency of Ports and Transportation, the National Customs Tax Directorate - DIAN and the Financial Information and Analysis Unit -UIAF- and any other public body or private, which requires it motivated.
The Ministry of Transport is the competent authority to design the single electronic cargo manifest format, the technical file for its preparation and the corresponding control mechanisms, so as to guarantee the comprehensive management of the information contained therein.
The cargo manifest must contain, as a minimum, the following information:
- The identification of the transport company that issues it.
- Manifest type.
- Name and identification of the owner, sender and recipient of the goods.
- Description of the vehicle in which the merchandise is transported.
- Name, identification and address of the owner, possessor or holder of the vehicle.
- Name and identification of the driver of the vehicle.
- Description of the transported merchandise, indicating its weight or volume, as the case may be.
- Place and address of origin and destination of the goods.
- The amount to be paid in letters and numbers.
- Date and place of payment of the amount to be paid.
- The manifestation of the transport company to owe the owner of the electronic cargo manifest, the unpaid balance of the amount to be paid. This manifestation will be presumed by the simple fact of the issuance of the electronic cargo manifest, provided that the receipt of the goods is recorded in the completion of the trip.
- The deadlines and times for the loading and unloading of the merchandise, and the date and time of arrival and departure of the vehicles for the corresponding loading and unloading of the merchandise.
- Insurance: Insurance company and policy number.
The manifest lists all the shipments of the merchandise that is being transported. Once a consignment has been associated with a manifest, it cannot be registered in another trip.
The cargo manifest is issued electronically on the website of the Ministry of Transport in the section http://rndc.mintransporte.gov.co/. Platform that is available 24 hours a day, 7 days a week, 365 days a year. Some transport companies have their own software or application to control the registration of cargo manifests. These softwares are designed to make reporting and data storage more practical and efficient. These applications must have a connection to the website of the Ministry of Transportation to upload the information. For this purpose, IT companies specialized in the subject are hired.
The cargo manifest will be issued in original and two (2) copies, signed by the authorized transport company and by the owner or driver of the vehicle. The original must be carried by the driver throughout the tour; the first copy will be kept by the transport company, and the second copy must be kept by the owner and / or driver of the vehicle.
The original sent by electronic, optical or similar means, such as Electronic Data Interchange, EDI, Internet, electronic mail, telex or fax, may be carried by the driver during the journey and has the effects of the original. The document can be carried in copy or fax as long as it is legible. The authority must accept the document even if it is not signed by the owner of the manifest.
In the event that circumstances arise in the operation that imply the modification of the value to pay originated by variation in the volume and / or quantity of the cargo, the parties that sign the cargo manifest must issue an attached document stating such situation. This attached document will be an integral part of the electronic cargo manifest. The public service company of automotive cargo land transport must report the modifications made to the Ministry of Transport. The system of the National Registry of Cargo Dispatches will validate online and in real time the data that is mandatory and that is part of the electronic cargo manifest. In the event of inconsistencies, they will be adjusted directly by the public service companies of automotive freight land transport, at the time of registering the operations in the RNDC without having to process the data again.
If the public service companies of automotive freight land transport do not have branches and in the city of the headquarters where the company operates there is an event of force majeure, fortuitous event or technological failures, the freight transport company will print the default format and they will be able to fill it out manually, indicating in the observations the reasons why they are being filled out.
The public service companies of automotive cargo land transport will have up to 24 hours to electronically report the information corresponding to that manifest, entering the website http://rndc.mintransporte.gov.co/.
As of December 1, 2008, only the cargo manifests issued by the Electronic Cargo Manifest application are valid. Public cargo service companies will keep a copy of the issued manifest in their physical file, which will be contrasted with the information electronically generated.
The holder of the electronic cargo manifest is the owner, possessor or holder of a public service cargo vehicle to whom the Value to Pay is owed. The electronic cargo manifest will provide executive merit for the unpaid balance of the Value to Pay, insofar as said balance constitutes a clear, express and enforceable obligation in charge of the transport company. Among other things, this means that the owner of the manifesto is guaranteed to present an executive claim before a judge. Lawsuit that represents a faster and faster process to obtain payment of the debt, compared to a declaratory process.
The law has left open the possibility for the Ministry of Transportation to incorporate technological tools into the design of the electronic cargo manifest, such as electronic payment mechanisms for the value of the services it collects.
The Superintendency of Ports and Transportation, as the entity in charge of inspection, surveillance and control, will sanction companies in case of not complying with the rules that regulate the cargo manifest. According to Decree 2228 of 2013, the following are the cases in which the Superintendency of Ports and Transportation will sanction those under surveillance. It is worth remembering that the person responsible for these fines will be the company, not the driver or owner of the vehicle:
- Fill out the electronic cargo manifest with inaccurate and / or false information.
- Issue the electronic cargo manifest, incompletely.
- Failure to send the electronic cargo manifest to the Ministry of Transportation, under the terms and by the means that it defines.
- Do not keep the electronic cargo manifest in your files.
- Failure to issue and deliver an original of the Electronic Cargo Manifest, to the owner, holder or holder of the public service cargo vehicle.
- The driver does not carry the cargo manifest.
- The transport company does not issue the cargo manifest.
- Present inconsistencies in the document.
The law contemplates a series of cases in which the Cargo Manifest is not required. These are:
- When the company is carrying out private transport, that is, in the case in which the company transports merchandise for itself.
- When any of the following goods are transported as long as the negotiation is made directly between the owner of the vehicle and the generator of the load:
- Animals: live small livestock live birds and fish.
- Products of animal origin: eggs, raw or pasteurized milk and dairy in general.
- Used packaging and containers: containers, crates, empty drums.
- Prepared products: beer, soda and panela.
- Agricultural products: those whose origin is in the field and destined for an urban center, except coffee and processed products.
- Construction materials: brick, clay tile, stone, gravel, sand, earth, plaster, ballast, marble and wood.
- Petroleum derivatives: propane gas, kerosene, coccol, vegetable mineral coals
- Packed and packaged for sale to the consumer.
- Transportation at the municipal level. Transport operations within the perimeter of the same city or municipality.
If the transportation authority, understood as the National Police, the Ministry of Transportation or the Superintendency of Ports and Transportation, evidences the commission of any of the prohibited behaviors, an administrative sanctioning investigation will be opened.
The authority in charge of opening these investigations is the Superintendency of Ports and Transportation. This decision will be communicated to the affected company, and within a period of 10 days it must present its defenses to defend itself within the process, provide and request the evidence that they intend to assert. To defend yourself, it is recommended to have the advice of a specialized transportation lawyer, the fines represent a minimum of ten (10) monthly minimum wages.
After this stage, the Superintendency decides whether to impose the fine or not. Appeal and reinstatement remedies proceed against this decision. If the fine persists, a claim for nullity and restoration of the right must be filed within the next four (4) months before a Judge of the Republic to nullify the resolution that sanctioned the company.
Written by: CARLOS POSADA CÁRCAMO
Transportation Law Specialist Lawyer
Transportation Area Lawyer of the firm Castro Nieto Abogados